EUROPEAN COMMISSION OF HUMAN RIGHTS

Application Nos. 31145/96 and 35580/97

Mark WILKINSON and Kevin ALLEN

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 31 May 1999)

I. INTRODUCTION

(paras. 1-15) ................................................. 1

A. The applications

(paras. 2-4) .............................................. 1

B. The proceedings

(paras. 5-10) ............................................. 1

C. The present Report

(paras. 11-15) ............................................ 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-26) ................................................ 4

A. The particular circumstances of the cases

(paras. 16-18) ............................................ 4

B. Relevant domestic law

(paras. 19-26) ............................................ 4

III. OPINION OF THE COMMISSION

(paras. 27-42) ................................................ 6

A. Complaints declared admissible

(para. 27) ................................................ 6

B. Points at issue

(para. 28) ................................................ 6

C. As regards Article 6 para. 1 of the Convention

(paras. 29-40) ............................................ 6

(a) Applicability of Article 6 para. 1 of the Convention

(para. 30) ................................................ 6

(b) Independence and impartiality of the applicants’ courts-martial

(paras. 31-36) ............................................ 6

CONCLUSION

(para. 37) ................................................ 7

(c) Remaining points at issue

(paras. 38-39) ............................................ 8

CONCLUSION

(para. 40) ................................................ 8

D. Recapitulation

(paras. 41-42) ............................................ 8

APPENDIX I : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF APPLICATION No. 31145/96 ............. 9

APPENDIX II : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF APPLICATION No. 35580/97 ............ 19

I. INTRODUCTION

1 . The following is an outline of the cases as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The applications

2 . The applicants are both British citizens. Mr Wilkinson was born in 1969 and he resides in Feltham. Mr Allen was born in 1973 and he resides in Aberdeen. Both applicants were represented before the Commission by Mr John Mackenzie, a solicitor practising in London.

3 . The applications are directed against the United Kingdom. The respondent Government were represented by Mr Martin Eaton, Agent, Foreign and Commonwealth Office.

4 . The cases mainly concern the independence and impartiality of the applicants’ courts-martial and the fairness of those proceedings. In these respects, the applicants invoke Article 6 para. 1 of the Convention.

B. The proceedings

5 . Mr Wilkinson’s application was introduced on 13 April 1996 and registered on 24 April 1996. Mr Allen’s application was introduced on 1 April 1997 and registered on 9 April 1997.

6 . On 27 November 1996 and 3 December 1997, respectively, the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the applications to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicants’ complaints under Article 6 para. 1 of the Convention. Mr Wilkinson’s application was also communicated under Article 6 para. 3 of the Convention.

7 . The Government's observations on the cases were submitted on 11 April 1997 and 6 May 1998, respectively after an extension in each case of the time-limit fixed for that purpose. Mr Wilkinson only submitted observations in reply and he did so on 5 June 1997.

8 . On 1 July and 22 October 1998, respectively the Commission declared admissible the applicants’ complaints under Article 6 para. 1 of the Convention that they did not receive a fair hearing by an independent and impartial tribunal established by law. Mr Wilkinson’s complaint about the lack of a public hearing was also declared admissible. The Commission declared inadmissible the remainder of the applications.

9 . The texts of the Commission's decisions on admissibility were sent to the parties on 27 July and 30 October 1998, respectively and the parties were invited to submit such further information or observations on the merits as they wished. No such observations were received. Pursuant to entry into force of Protocol No. 11 to the Convention on 1 November 1998, the applications were transferred to the Commission sitting in plenary.

10 . After declaring the cases admissible, the Commission, acting in accordance with former [1] Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement in the cases. In the light of the parties' reaction, the Commission now finds that there is no basis on which such settlements can be effected.

C. The present Report

11 . The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

J.-C. GEUS

B. MARXER

M.A. NOWICKI

B. CONFORTI

Sir Nicolas BRATZA

MM I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIĆ

C. BÃŽRSAN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

12 . Having decided to join the present applications on 31 May 1999, the Commission adopted the text of this Report on the same day and it is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

13 . The purpose of the Report, pursuant to former Article 31 of the Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14 . The Commission's decisions on the admissibility of the applications are annexed hereto.

15 . The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the cases

16 .  At the time of the events in question, both applicants were serving in the army and were tried by district courts-martial convened pursuant to the Army Act 1955.

17 .  Mr Wilkinson pleaded guilty to the armed forces’ disciplinary offence of absence without leave (contrary to section 38(a) of the Army Act 1955). Although the Army Board upheld his petition against the custodial part of his sentence, the charge for which he was convicted carried a potential sentence of two years’ imprisonment (see paragraph 26 below).

18 .  Mr Allen pleaded guilty to two charges of possession of controlled drugs contrary to the Misuse of Drugs Act 1971, these being civilian criminal offences. The Army Board reduced the custodial element of his sentence to six months’ imprisonment.

B. Relevant domestic law

19 . The relevant provisions of the Army Act 1955 are set out in the judgment of the European Court of Human Rights in the Findlay case (Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, pp. 272-75, paras. 32-51).

20 . Central to the system under the 1955 Act was the role of the “convening officer”. This officer (who had to be of a specified rank and in command of a body of the regular forces or of the command within which the person to be tried was serving) assumed responsibility for every case to be tried by court-martial. He or she had the final decision on the nature and detail of the charges to be brought and the type of court-martial required, and was responsible for convening the court-martial.

21 . The convening officer would draw up a convening order, which would specify, inter alia , the date, place and time of the trial, the name of the president and the details of the other members, all of whom he could appoint. Failing the appointment of a judge advocate by the Judge Advocate General’s Office, the convening officer could appoint one. He also appointed, or directed a commanding officer to appoint, the prosecuting officer.

22 . Prior to the hearing, the convening officer was responsible for sending an abstract of the evidence to the prosecuting officer and to the judge advocate, and could indicate the passages which might be inadmissible. He procured the attendance at trial of all witnesses to be called for the prosecution. When charges were withdrawn, the convening officer’s consent was normally obtained, although it was not necessary in all cases, and a plea to a lesser charge could not be accepted from the accused without it. He had also to ensure that the accused had a proper opportunity to prepare his defence, legal representation if required and the opportunity to contact the defence witnesses, and was responsible for ordering the attendance at the hearing of all witnesses “reasonably requested” by the defence.

23 . The convening officer could dissolve the court-martial either before or during the trial, when required in the interests of the administration of justice. In addition, he could comment on the proceedings of a court-martial. Those remarks would not form part of the record of the proceedings and would normally be communicated in a separate minute to the members of the court, although in an exceptional case, where a more public instruction was required in the interests of discipline, they could be made known in the orders of the command.

24 . The convening officer usually acted as confirming officer also. A court-martial’s findings were not effective until confirmed by the confirming officer, who was empowered to withhold confirmation or substitute, postpone or remit in whole or in part any sentence.

25 . Since the applicants’ trials, the law has been amended by the Armed Forces Act 1996 (see the above-mentioned Findlay v. the United Kingdom judgment, p. 276, paras. 52-57).

26 . A person convicted of absence without leave shall be liable to imprisonment for a term not exceeding two years (section 38(a) of the 1955 Act).

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

- a fair hearing by an independent and impartial tribunal; or

- a hearing by a tribunal “established by law”, or in Mr Wilkinson’s case, a “public” hearing.

B. Points at issue

28 . Accordingly, the points at issue in the present cases are:

- whether the applicants were given a fair hearing before an independent and impartial tribunal within the meaning of Article 6 para. 1 of the Convention; and

- whether the applicants were afforded a hearing by a tribunal “established by law” within the meaning of Article 6 para. 1 of the Convention and whether Mr Wilkinson was afforded a “public” hearing within the meaning of that Article.

C. As regards Article 6 para. 1 of the Convention

29 . Article 6 para. 1, insofar as relevant, reads as follows:

“1. In the determination … of any criminal charge against him, everyone is entitled to a fair and public hearing … by an independent and impartial tribunal established by law. …”

(a) Applicability of Article 6 para. 1 of the Convention

30 . The Commission notes, in particular, the potential penalty of two years’ imprisonment for the charge to which Mr Wilkinson pleaded guilty together with the nature of the charges to which Mr Allen pleaded guilty and his sentence of, inter alia , six months’ imprisonment. It considers that the applicants’ court-martial proceedings involved the determination of charges of a criminal nature within the meaning of Article 6 para. 1 of the Convention, it being the case that the determination of their sentences after their pleas of guilty constituted part of the determination of the charges against them (see the above-cited Findlay v. the United Kingdom judgment at para. 69 and, for example, Garyfallou Aebe v. Greece judgment of 24 September 1997 , Reports 1977-V, no. 49, p. 1830, paras. 32-33, with further references).

(b) Independence and impartiality of the applicants’ courts-martial

31 . The applicants mainly argue that their courts-martial lacked independence and impartiality and that the proceedings against them were consequently unfair. The Government made no observations on the admissibility of these aspects of the cases except to note that they raise issues similar to those in respect of which the Court found a violation of Article 6 para. 1 in the above-cited Findlay case and in the Coyne case (Coyne v. the United Kingdom judgment of 24 September 1997, Reports 1997-V, pp. 1848-52, paras. 20-44). Having reserved their position on the merits, the Government did not submit any further observations in these cases.

32 . The Commission recalls that, in the above mentioned Findlay judgment, the Court found that a general court-martial convened pursuant to the Army Act 1955 did not meet the requirements of independence and impartiality set down by Article 6 para. 1 of the Convention in view, in particular, of the central part played in its organisation by the convening officer. In this latter respect, the Court considered that the convening officer was central to the applicant's prosecution and was closely linked to the prosecution authorities; the Court expressed some concern that the members of the court-martial were subordinate (either directly or indirectly) to the convening officer; and the Court found it significant that the convening officer also acted as confirming officer.

33 . The Court subsequently found a district court-martial convened pursuant to the Air Force Act 1955 to have similar deficiencies (the above-mentioned Coyne v. the United Kingdom judgment). In particular, it considered that there were no significant differences between the part played by the convening officer in Mr Coyne's court-martial, under the Air Force Act 1955, and in that of Mr Findlay, under the Army Act 1955. While an appeal to the Courts-Martial Appeal Court was open to Mr Coyne, the Court concluded that the organisational defects in the court-martial could not be corrected by any subsequent review procedure because an accused faced with a serious criminal charge is entitled to a first instance tribunal which meets the requirements of Article 6 para. 1 of the Convention. In addition, the Court has recently found a violation of Article 6 para. 1 on the same basis in a series of cases involving complaints about the independence and impartiality of army and air force district and general courts-martial convened pursuant to the Army and Air Force Acts 1955 (Cable and Others v. the United Kingdom judgment of 18 February 1999, to be reported in the official Reports of selected judgments and decisions).

34 . The Commission recalls that in the present cases district army courts-martial were convened pursuant to the Army Act 1955 to try the applicants. It can find no reason to distinguish the present cases from those of Mr Findlay, of Mr Coyne or of Mr Cable and Others as regards the part played by the convening officer in the organisation of their courts-martial. Accordingly, the Commission considers that the applicants’ courts-martial did not meet the independence and impartiality requirements of Article 6 para. 1 of the Convention. The Commission also considers that, since the applicants were faced with, inter alia , charges of a serious and criminal nature and were therefore entitled to a first instance tribunal complying with the requirements of Article 6 para. 1, such organisational defects in their courts-martial could not be corrected by any subsequent review procedure.

35 . Accordingly, and for the reasons expressed in detail in the above-cited judgment of the Court in Mr Findlay's case, the Commission concludes that the courts-martial which dealt with the applicants’ cases were not independent and impartial within the meaning of Article 6 para. 1 of the Convention.

36 . The Commission is further of the opinion that, since the applicants’ courts-martial have been found to lack independence and impartiality, they could not guarantee either of the applicants a fair trial (Findlay v. the United Kingdom judgment, loc. cit ., Comm. Report, at para. 108).

CONCLUSION

37 . The Commission concludes, unanimously/by a majority, that there has been a violation of Article 6 para. 1 of the Convention in that the applicants were not given a fair hearing by an independent and impartial tribunal.

(c) Remaining points at issue

38 . The applicants further complain that their courts-martial were not “established by law” within the meaning of Article 6 para. 1 of the Convention. Mr Wilkinson also complains that the court-martial proceedings against him were not “public” within the meaning of that Article.

39 . In view of its conclusion at paragraph 37 above, the Commission finds that, in the present cases, it is unnecessary also to examine these complaints of the applicants.

CONCLUSION

40 . The Commission concludes, unanimously, that in the present cases it is not necessary also to examine the applicants’ complaints that they were not afforded a hearing by a tribunal “established by law” within the meaning of Article 6 para. 1 of the Convention or Mr Wilkinson’s complaint that he did not have a “public” hearing within the meaning of that Article.

D. Recapitulation

41 . The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 of the Convention in that the applicants were not given a fair hearing by an independent and impartial tribunal (para. 37 above).

42 . The Commission concludes, unanimously, that in the present cases it is not necessary also to examine the applicants’ complaints that they were not afforded a hearing by a tribunal “established by law” within the meaning of Article 6 para. 1 of the Convention or Mr Wilkinson’s complaint that he did not have a “public” hearing within the meaning of that Article (para. 40 above).

M.-T. SCHOEPFER S. TRECHSEL

Secretary President

to the Commission of the Commission

[1]  The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998